Karnataka High Court
Sri B C Shashidhar vs Smt R Rashmi M.Tech on 3 June, 2022
Author: Alok Aradhe
Bench: Alok Aradhe
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE, 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MS.JUSTICE J.M.KHAZI
M.F.A.NO.9555 OF 2012 (FC)
BETWEEN:
SRI B C SHASHIDHAR
S/O CHANDRAPPA,
AGED ABOUT 39 YEARS,
AGRICULTURAL OFFICER,
VEERABHADRESWARA NILAYA,
3RD CROSS, NETHAJI EXTENSION,
NEAR CHURCH, VINOBHANAGARA,
SHIVAMOGGA CITY - 577 203
... APPELLANT
(BY SRI. H.MALLAN GOUD, ADVOCATE)
AND:
SMT R RASHMI M.TECH
D/O. RAJASHEKARAPPA,
AGED ABOUT 35 YEARS,
LECTURER IN COMPUTER SCIENCE,
C/O. NESARA
SRIPATH ROAD, 3RD CROSS,
KEERTHI NAGARA,
SHIVAMOGGA CITY - 588 201
...RESPONDENT
(BY SRI. RAVI V, ADVOCATE)
2
THIS MFA IS FILED UNDER SECTION 19 (1) OF THE
FAMILY COURT ACT 1984 PRAYING TO a) SET ASIDE THE
JUDGMENT AND DECREE DATED 31.07.2012 PASSED BY THE
FAMILY COURT, SHIMOGA IN M.C.NO.31/2011 BY ALLOWING
THIS APPEAL; b) ALLOW THE PETITION FILED BY THE
APPELLANT ON THE FILE OF THE FAMILY COURT SHIMOGA IN
M.C.NO.31/2011; c) PASS SUCH OTHER SUITABLE JUDGMENT
OR DECREE AS THIS HON'BLE COURT FINDS IT APPROPRIATE IN
THE ADMITTED FACTS AND CIRCUMSTANCES OF THE CASE IN
THE INTEREST OF JUSTICE.
THIS MFA HAVING BEEN HEARD AND RESERVED ON
30.05.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, J.M.KHAZI J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 19(1) of the Family Courts Act, 1984, has been filed by husband challenging the impugned judgment and order, by which his petition filed by him under Section 13(1) (i-a) & (i-b) of Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act' for short) has been dismissed.
2. For the sake of convenience the parties are referred to by their rank before the Family Court.
3. The brief facts leading to the filing of petition are that the marriage of petitioner and respondent was 3 solemnized on 11.11.2002 at Veerashaiva Kalyana Mantapa, as per the customs and rituals prevailing in Hindu community. At the time of marriage, petitioner was working in Agriculture Department at Kudligi, Ballari District and respondent was working as Lecturer in Computer Science at JNNCE, Shivamogga. Petitioner used to visit Shivamogga once in a week. During 2003, he was transferred to Shivamogga. Respondent gave birth to a son on 18.10.2003. Petitioner has alleged that respondent was not treating the petitioner with respect on the ground that he was drawing lesser salary than her and that she was not compatible with her in-laws. Inspite of the fact that he set up separate residence, the respondent was not happy and used to quarrel. She was always complaining that he comes home late. Since petitioner was working as Agricultural Extension Officer, his work compelled him to stay back in rural areas and as such, he used to return home late. Respondent stayed only for a period of two months in their rented premises and went back to her parents house. She forced him to shift to the ground floor of her parents house on rent from February 2005 to October 2007. She was 4 not cordial with the petitioner and was not discharging her marital obligations. She deprived him of the family life. She was not allowing him to speak to his son. Respondent never cared to join the petitioner and she continued to stay with her parents. Thus, on the grounds of cruelty as well as desertion, the petitioner had sought for a decree of divorce.
4. Respondent appeared through counsel and filed written statement admitting the relationship between the parties and that they are blessed with a son. She has denied all the allegations made in the petition. Inter-alia respondent has contended that petitioner was never a responsible husband. It was contended that the petitioner was after the salary of the respondent and that no point of time, he treated her with love. It was further contended that he never bore any family expenses and the petitioner was cruel and totally ill treating her. He was not regularly coming home. It was also contended that no women could live with him as wife. He was behaving as though he was forced to marry her and he never had any love and affection towards the child and as such the respondent sought for dismissal of the petition. 5
5. The Family Court has conducted an enquiry, wherein petitioner is examined as PW-1 and documents namely Ex.P1 to 4 are marked.
6. On the other hand respondent has examined herself as RW-1 and closed her side.
7. By the impugned judgment and order, the Family Court has dismissed the petition on the ground that petitioner has failed to prove he grounds of cruelty as well as desertion on the part of respondent.
8. We have heard the arguments of the learned counsel for petitioner as well as respondent and perused the record.
9. The learned counsel for petitioner argued that the impugned the judgment and order is contrary to law, facts and legal evidence placed on record and that it is contrary to the provisions of the Act and law declared by the Hon'ble Apex Court. It is further argued that the Family Court has not applied its mind properly to the facts and grounds urged by the petitioner. It is also submitted that the Family Court has 6 failed to appreciate the fact that the respondent never shown any inclination to live with the petitioner and treated him with cruelty. It is also pointed out that there is no compatibility between the parties and that there is no cohabitation between them since more than five years and the same has not been appreciated by the Family Court. It is contended that even though the petitioner has proved both the grounds i.e., cruelty as well as desertion, the Family Court has wrongly refused to grant a decree of divorce. It is submitted that from any angle the impugned judgment and order is not tenable and has accordingly sought for setting aside the same with a prayer to grant a decree of divorce.
10. On the other hand the learned counsel representing the respondent has supported the impugned judgment and order and has sought for dismissal the appeal.
11. It is relevant to note that while petitioner was working as Agricultural Extension Officer, respondent is an employee of Jawaharlal Nehru Institute of Technology at Shivamogga. At the time of marriage, the petitioner was 7 working at Kudligi. He used to visit Shivamogga once in a week. Ultimately, in the month of June 2003, he was transferred to Shivamoga. At that time, respondent was pregnant and she has given birth to a son on 18.10.2003. So far as the ground of cruelty is concerned, petitioner has pleaded that while he was serving at Kudligi, whenever he used to come to Shivamogga, petitioner and her parents were not giving him due respect. Even though at the instance of the respondent, he set up a separate residence, respondent never stayed in the house for more than two months and she returned back to her parents house. He has alleged that at her insistence, though he had set up residence in the first floor of her parent's house, despite the same she hardly stayed in the house and she used to stay with her parents.
12. On this aspect, respondent has pleaded that since the parents of the petitioner did not wholeheartedly welcome her into their family, she was not getting any assistance from them. She has alleged that the petitioner used to come home late and sometimes he was not returning to home and therefore, as no one was there to take care of the child, she 8 was taking the help of her parents and as such she shifted to her parents house. He has also pleaded that the respondent was never co-operative and deprived him of her companionship. She never allowed him to mix with the child. The pleadings as well as the evidence led by the petitioner with regard to the ground of cruelty hardly attracts the provisions of Section 13 (1) (i-a) of the Act. It is well settled law that in order to succeed on the ground of cruelty, the party must prove that the cruelty is of such nature that it is not safe for the petitioner to live with the respondent.
13. Petitioner has admitted that he was returning home late on account of the nature of his work and the same was not intentional. As rightly observed by the Family Court, respondent who was employed with a young child was in need of some assistance and therefore, she was trying to find it with her parents. However, the same cannot be termed as cruelty. As observed by the Family Court, except the self- serving statement of the petitioner, he has not led any evidence to prove the ground of cruelty as pleaded by him. 9 Therefore, the Family Court has rightly rejected his petition so far as cruelty is concerned.
14. Now we may deal with the ground with regard to desertion. Petitioner has pleaded that since 2008, there is no cohabitation between the petitioner and respondent. During the course of her cross-examination, respondent has admitted this fact. The reason assigned by the respondent in not staying with the petitioner is that he was coming late and therefore, there were no one to help her with the young child and as such she withdrew from the company of the petitioner. It is relevant to note that after petitioner got transferred to Shivamogga, he has shifted his parents to Shivamogga and was staying with them. As an Agricultural Extension Officer, petitioner was required to work late hours and by the time he returned home, he used to be late. However, his parents were available at the home. Therefore, the reasons assigned by the respondent to shift to her parents house and thereby withdraw from the company of petitioner is not justifiable. 10
15. During her cross-examination, a suggestion is made to the effect that since the parents of the petitioner was available in the house, she was getting proper assistance and inspite of that she was staying in her parents house. For this respondent has answered that her mother-in-law had demanded that unless and until she pays dowry of Rs.4,00,000/- she should not come to the house. She has also deposed that at the time of marriage, dowry of Rs.1,00,000/- was given and silver articles were also given. However, there are no pleadings to the effect that there was any demand of dowry and for not fulfilling the said demand, she was prevented from entering the house of the petitioner.
16. When suggested that even after the child became five month old, she did not choose to return to her husband's house, respondent has stated that the parents of the petitioner were not ready to welcome the child into their family. It is pertinent to note here that in the objection statement, the petitioner has not taken the aforesaid ground. Before the petition was filed the couple had undergone counseling at the Santvana Kendra of Shivamooga. This fact is 11 admitted by the respondent. However, she has alleged that the counsel who is representing the petitioner before the family court was the one present the Santvana Kendra. However, the fact remains that before filing the petition, petitioner tried to reconcile with the respondent and after the failure of the conciliation efforts, he has filed the petition. Even though petitioner has failed to prove the ground of cruelty, he is able to establish that without any justifiable reasons, the respondent has withdrawn from his company and has thereby deserted him. Therefore, on the ground of desertion, petitioner is entitled for a decree of divorce. To this extent, impugned judgment and order is liable to be modified and accordingly, we proceed to pass the following:
ORDER
(i) The appeal filed by the petitioner is allowed in part. The impugned judgment and order in so far as it rejects the petition on the ground of desertion is here by set aside. 12
(ii) Consequently the petition under section 13(1)(1b) is allowed.
(iii) The marriage of petitioner with respondent solemnized on 11.11.2002 at Veerashaiva Kalyana Mantapa, Shivamogga is hereby dissolved by a decree of divorce of the ground of desertion.
(iv) The registry is directed to transmit the trial Court record along with the copy of this Judgment to the Family Court.
Sd/-
JUDGE Sd/-
JUDGE RR